S3026

An Act concerning liability for food donations and gleaning activities, amending and supplementing P.L.1982, c.178, and supplementing Title 4 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.1982, c.178 (C.24:4A-2) is amended to read as follows:

2. As used in this act:

“Donate” means to provide food free of charge or for a fee sufficient only to cover the cost of storing, transporting, or otherwise handling the food.

[a.] “Donor” includes, but is not limited to, any farmer, processor, distributor, wholesaler or retailer of perishable or prepared food, a public or nonpublic school, or an institution of higher education in this State [;].

[b.] “Food” means articles used for food or drink for humans and articles used for components of any such article [;] .

“Food bank” means a nonprofit organization that collects, stores, and distributes donated surplus food either to nonprofit organizations that feed the needy or directly to needy individuals.

[c.] “Gleaner” means a person who harvests for distribution an agricultural food that has been donated by the owner [;] .

[d.] “Nonprofit organization” means an organization incorporated under the provisions of Title 15 or Title 16 of the Revised Statutes of New Jersey, an organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code or an entity to which a charitable contribution as defined under subsection (c) of section 170 of the Internal Revenue Code is deductible under section 170 [;] .

[e.] “Perishable food” means any food that may spoil or otherwise become unfit for human consumption because of its nature, type or physical condition. Perishable food includes, but is not limited to, fresh or processed meats, poultry, seafood, dairy products, bakery products, eggs in the shell, fresh fruits or vegetables and foods that have been canned or otherwise processed and packaged and which may or may not require refrigeration or freezing [;] .

[f.] “Prepared food” means food commercially processed and prepared for human consumption [;]

[g. “Food bank” means a nonprofit food clearinghouse that solicits, stores, and distributes donations of edible but unmarketable surplus food. The food is distributed to nonprofit organizations that feed the needy.]

(cf: P.L.2012, c.68, s.1)

2. Section 3 of P.L.1982, c.178 (C.24:4A-3) is amended to read as follows:

3. a. Any donor of prepared or perishable food or any gleaner of agricultural food, which food appears to be fit for human consumption at the time it is donated to a nonprofit organization or any other person, shall not be liable for damages in any civil action or subject to criminal prosecution for any injury or death due to the condition of the food, unless the injury or death is a direct result of the gross negligence, recklessness or knowing misconduct of the donor or gleaner.

b. A food bank, nonprofit organization, or their agents [which or] who in good faith receive and distribute prepared or perishable food which appears to be fit for human consumption at the time it is distributed shall not be liable for damages in any civil action or subject to criminal prosecution for any injury or death due to the condition of the food, unless the injury or death is a direct result of the gross negligence, recklessness or knowing misconduct of the organization or an agent of the organization.

c. An owner of agricultural food who gives permission to a gleaner to enter upon his land for the purpose of harvesting donated agricultural food for distribution shall not be liable for damages in any civil action due to the presence of the gleaner on the land and shall not be liable for damages in any civil action or subject to criminal prosecution resulting from the consumption of the food gleaned or donated.

d. This section applies to good faith donations of perishable or prepared food which is not readily marketable due to appearance, freshness, grade, passage of the “best by” or other open date, surplus supply, or other conditions which do not affect its fitness for human consumption. The protections provided in this section shall apply regardless of compliance with any laws, rules, regulations, or ordinances regulating the quality or labeling of food.

(cf: P.L.1982, c.178, s.3)

3. (New section) A nonprofit organization that organizes or hosts volunteers on agricultural land for the purpose of collecting or gleaning agricultural food from the land for ultimate distribution to needy individuals shall not be liable for damages in any civil action due to the presence or activity of the organization or volunteers on the land, unless the damage is a direct result of the gross negligence, recklessness, or knowing misconduct of the nonprofit organization or volunteer.

4. (New section) Within 90 days after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the Department of Agriculture shall prepare and publish on its Internet website a guidance document that provides information to farmers, food banks, donors, nonprofit organizations, and other persons on the State and federal liability protections available for food donations, gleaning, and other related activities.

5. This act shall take effect immediately.

STATEMENT

This bill would clarify and expand liability protections for food donations and gleaning activities.

Under the federal “Bill Emerson Good Samaritan Food Donation Act,” (42 U.S.C. s.1791) and existing State law, P.L.1982, c.178 (C.24:4A-1 et seq.), donors of food and organizations that receive and distribute the food to needy individuals are immune from civil and criminal liability arising from the food, provided certain requirements are met. These laws also provide liability protection to farmers who permit the collection or gleaning of agricultural food on their land. While these laws provide a good baseline of liability protection, some concern over liability still exists due to ambiguities in the federal and State laws. Additionally, individuals, farmers, and organizations may be unaware of the liability protections that exist for food donations, gleaning, and other related activities.

This bill would define the term “donate” in existing State law to mean “to provide food free of charge or for a fee sufficient only to cover the cost of storing, transporting, or otherwise handling the food.” This provision would, in effect, permit nonprofit organizations to recover the cost of handling donated food and perhaps allow for innovative approaches to sell surplus food at deeply reduced prices, such as “social supermarkets.” The bill would provide liability protections to public and nonpublic schools donating food. The bill would also clarify that a donor or gleaner of food may donate the food directly to needy individuals, as opposed to just nonprofit organizations. This measure would increase efficiency and enable the timely use of perishable food.

The bill would specify that the State’s liability protections apply to food that is past its “best by” or other open date, but is still fit for human consumption. Current federal and State laws are silent as to whether post-date food is eligible for liability protection, and clarifying that it is eligible would ensure that less food goes to waste. The bill would also specify that State liability protections apply regardless of compliance with any laws, rules, regulations, or ordinances regulating the quality or labeling of food. The federal liability protection law requires donated food to meet these requirements, imposing extra and unnecessary burdens on donors and nonprofit food recovery organizations.

The bill also would establish new liability protections for nonprofit organizations that organize or host volunteers on agricultural land for the purpose of collecting or gleaning agricultural food from the land for ultimate distribution to needy individuals. Lastly, in order to increase awareness of these protections, the bill would require the Department of Agriculture to prepare and publish on its Internet website a guidance document that provides information on the State and federal liability protections available for food donations, gleaning, and other related activities.